Rosenau v. Lansing

BROWN, J. The contract involved herein, so far as is necessary to this opinion, reads: “From Quaker Nursery, Salem, Oregon. “Duplicate. “Order for Trees and Plants “No. Date Apr. 4, 1919. “I, Ben Rosenau, have this day bought of C. F. Lansing the following bill of Nursery Stock, at the price set opposite each respective article below, for the purpose of improving my property; to be delivered at the town of Sheridan, Or., in the fall of 1919, in good condition. “I hereby agree to come or send for the goods purchased herein on the day set for delivery, at which time said goods are to be in good order, but after that date will be at my risk. Prices of any article omitted to be deducted at settlement. It is mutually agreed and fully understood by the contracting parties that the entire contract is written and printed herein, and that no countermand of this contract will — 641 — be accepted. It is further agreed that if any trees or plants should not prove true to name sold under, that the owner of the nursery shall not be liable for more than the price paid for trees in this contract. “No. Article Size or Age Dollars Cents ‘ ‘ 1200 Prune Trees, Italian 4 to 6 $240 00 “Total $240 00 “For which I promise to pay to C. F. Lansing The foregoing fruit-tree agreement is a printed form supplied by the defendant, and properly signed. The terms of an agreement having been reduced to writing, the law commands that that writing be considered as containing all those terms. Hence, it became the duty of the court “to ascertain and declare what is, in terms or in substance, contained therein.” Or. L., §§ 136, 713, 715. The parties disagree as to the meaning of the word “fall,” as used in the contract. “There are certain facts of such general notoriety that they are assumed to be already known to the court. Of those facts evidence need not be produced.” Or. L., § 728. The vendor contracted to deliver the trees in the fall of 1919. The term “fall,” as used in the foregoing contract, was employed in its usual and popular. sense, and in accordance with its true signification. Throughout the United States that term, when used to designate one of the four seasons of the year, embraces the three months commencing with the first day of September, and terminating with the last day of November: See Webster’s New International Dictionary; Century Dictionary; Funk and Wagnall’s New Standard Dictionary of the English Language. — 642 — The conflicting views of the parties, as disclosed by their learned discussion relative to the popular and astronomical definitions of the term ‘ ‘ autumn, ’ ’ do not affect the result of this case in any way. There is testimony supporting the contention that the buyer was, at all times mentioned in the contract, not only ready, willing and able, but that he was anxious to perform his contract. The contract was made in April, 1919. According to its terms, the vendor was to deliver the trees in the fall of that year, the day to be “set for delivery” by himself. He was the party clothed with the power to name the day. The vendee agreed “to come or send for the goods purchased herein on the day set for delivery.” Lansing, the vendor, never-set a day. He gave no notice whatever. Neither did he, at any time, attempt to make a delivery of the trees to Rosenau, the vendee. There is testimony in the record tending to show that the plaintiff *is the owner of, and resides upon, a farm situate three miles southeast of Sheridan, Oregon, designated in the contract as the place of delivery; that the defendant’s nursery is situate near Salem, in Marion County; that the plaintiff, as stated in the contract, was desirous of improving his farm by planting thereon an orchard consisting of 1,200 prune trees; that the trees bargained for were to be from four to six feet in height, and that the price to be paid therefor was $240, or at the rate of 20 cents per tree. The record further shows that the plaintiff, due to defendant’s failure to deliver the trees in fulfillment of his contract, in order to carry out his desire to improve his farm, was compelled to go elsewhere and purchase 1,200 prune trees at about 50 cents per tree for the kind and — 643 — quality of trees described in the contract. Concerning his ability to meet his contract, there is testimony to the effect that the plaintiff’s farm is of the value of $10,000, with an encumbrance of $2,500, and that during the whole of the period of delivery named in the contract he had in a bank at Sheridan between five hundred and six hundred dollars. The record shows that the plaintiff went to Sheridan every Saturday, and at other times; but, because he could not testify that he was at Sheridan on the last day of the fall of the year named in the contract, a nonsuit was granted. The cases discussed below are illustrative of the principle that governs the decision of this cause. The case of Weltner v. Riggs, 3 W. Va. 445, arises from a contract to sell and deliver fruit trees. The vendee “bought of Edward Riggs two thousand grape roots, one year old, at sixteen dollars per hundred,” together with three thousand two hundred fruit trees, “the same to be delivered this fall at Line-ford,” in Monongahela County, West Virginia. In that case, as in this, the vendor had the option to deliver the fruit trees at any suitable time in the fall. The Supreme Court of that state held that it was necessary for the vendor to notify the vendee of the day of delivery; and, -in speaking of the delivery and notice, it was said: “But even if it had been in time, where no day was specified, and the plaintiff might at Ms option select within the limited period of the fall the day of delivery, he should give to the other party reasonable notice. And more especially would this be necessary in the case of perishable articles which must be provided for promptly or be lost, and where much preparation may be required for the purpose. But no such notice was given in time in this case.” — 644 — This holding is cited in 49 L. R. A. (N. S.) 1151, in a valuable note on the subject of liability of vendors of trees, plants or vines. Another case in point is that of Kirkpatrick v. Alexander, 44 Ind. 595, which involved the delivery of hogs. In that case, the seller had agreed to deliver the hogs at some time during the first half of August, and the court held that it was necessary that the seller give notice to the purchaser of the time of delivery. McNary v. Bishop, 8 Dana (Ky.), 150, involved a contract wherein the vendors agreed to sell and deliver, between the 15th and 20th of October, 600 fat hogs of a specified description, to be delivered in such pens as the vendor should select within ten miles of Elizaville. The purchasers resided some distance from Elizaville and, until the expiration of the time set, had never received notice that the sellers would comply with their agreement, or that they had selected a place for delivery. In a suit against the vendees, the court held that it was necessary for the vendors to aver and prove that they had selected a place within ten miles of Elizaville for delivery, that they had fixed a day or days within the prescribed period for such delivery, and had notified the defendants. The case of Spooner v. Baxter, 16 Pick. (Mass.) 409, grew out of a contract for the purchase of a vessel then being constructed in Maine. The agreement provided that the vessel should “be completed and delivered, as soon as possible, at Frankfort Village, or Belfast, either of these places, at the option of the purchaser.” The court, in discussing the case, said: “The general rule is that, where the knowledge of a material fact rests more in the mind of one than of another, he who has the best means of — 645 — knowledge is to give notice to the other. * * The defendant was to build the vessel for the plaintiff as soon as possible. * * He would have more knowledge when she was finished and ready for sea than the purchaser would have, unless the purchaser employed a special agent to watch the work and to give notice of the finishing. But such a course on the part of the purchaser would not be reasonably expected. Baxter was to take the first step. He was to build and rig the ship, and offer to deliver her according to the contract, ready for sea, before he could compel the plaintiff to pay for her. He was bound to give notice of those facts, and to offer to deliver her at Frankfort Village or at Belfast ‘at the plaintiff’s option.’ ” The doctrine announced in Spooner v. Baxter, supra, is referred to with approval in the recent case of Orr v. Keith, 245 Mass. 35 (139 N. E. 508). The case of Cullum v. Wagstaff, 48 Pa. 300, arose from the breach of a contract to sell and deliver a large quantity of oil. It was there held to be the duty of the defendant, when prepared to deliver the oil, to notify the plaintiff of his readiness to execute his contract. See 35 Cyc. 168; 24 Am. & Eng. Ency of Law (2 ed.), 1073, 1074. In 2 Williston on Sales (2 ed.), Section 457, it is said: “In order for either buyer or seller to put the other party in default, it is often necessary that notice of some fact be given. The necessity is sometimes due to an express condition in the contract. In other cases the condition, though not expressed in words, is necessarily involved in the agreement. What may be called a condition implied in fact in such a case qualifies the promise. * * So in all cases where the buyer has by the terms of the contract an option as to the time or place of performance due from the seller, it is a condition qualifying the seller’s obligation that the buyer shall have given — 646 — shipping directions or other requisite notice of his choice. Conversely, if the buyer is to take goods when the seller has manufactured them or made them ready for delivery, the buyer’s obligation to take the goods is qualified by the condition that notice of the completion of the goods be given. * * The rule has thus been stated: ‘Where a party stipulates to do a certain thing in a certain specific event which may become known tó him, or with which he can make himself acquainted, he is not entitled to any notice, unless he stipulates for it; but when it is to .do a thing which lies within the peculiar knowledge of the opposite party, then notice ought to be given him.’ “Generally, where the buyer or seller is entitled to notice before performing, the notice is not simply a condition qualifying his obligation; it is also a legal duty of the other party to give such notice within a reasonable time. Accordingly, if the notice is not given, not only is the party who should receive it excused from performing, but he has a right of action against the party who should have given it.” See, also, Krebs Hop Co. v. Livesley, 55 Or. 227 (104 Pac. 3). This is not a case of delay in the delivery of the fruit trees, nor does the record present a case of waiver of the terms of the contract by plaintiff. The contract, as pleaded, and the testimony, if true, present a clear case of breach of contract by the defendant, resulting from his nondelivery of the trees during the time specified in the contract. There is testimony tending to show that there was a marked advance in the price of prune trees between April 4, 1919, the date of the execution of the contract, and the passing of daylight on November 30, 1919, the time of the breach thereof. We find in the record some competent evidence in support of all the material allegations of the com — 647 — plaint. It follows that the court erred in directing a nonsuit. For the petition, Messrs. McNary, McNary & Keyes, and Mr. E. M. Page. Contra, Messrs. Brown & Helgerson and Mr. W. H. Trindle. ■ This case is reversed and remanded. . Reversed and Remanded. McBride, C. J., and Bean and Coshow, JJ., concur. Rehearing denied March 17, 1925.